NAB’s arrest powers: Prospects brighten for curtailment of authority

ISLAMABAD: It will be the first time in two decades that a superior court is going to define the parameters for the exercise of unbridled, unchecked discretionary authority of the National Accountability Bureau (NAB) to arrest accused persons.

The remarks made by Islamabad High Court (IHC) Chief Justice Athar Minallah that a detailed order would be issued on the authority of the NAB to arrest suspects while investigations are still incomplete have brightened the prospects to save a number of persons particularly politicians from undergoing long imprisonment prior to their trial and establishment of charges against them.

No statute gives so much unprecedented but unquestionable powers to any organization or official than what the National Accountability Ordinance (NAO), 1999 bestows upon the NAB chairman, which is not accountable to anybody.

No legal remedy is available to those who are prosecuted by the NAB and put behind bars but are finally acquitted. In addition, the facility of bail is available in almost all criminal cases, but the NAO ousts the jurisdiction of all courts including the superior courts although high courts keep bailing out the accused persons by using their constitutional powers. While granting bails, the high courts have been demolishing the charge-sheets framed by the NAB against the accused persons. The Supreme Court has recommended that the accountability courts should be given the power to give bails to reduce unnecessary burden on the high courts, which have a heavy workload of cases to decide.

Section 24 of the NAO says the NAB chairman shall have the power, at any stage of the inquiry or investigation, to direct that the accused, if not already arrested, shall be arrested. If the NAB chief or an officer duly authorized by him decides to refer the case to an accountability court, such reference shall contain the substance of the offence or offences as the case may be, alleged to have been committed by the accused.

Not only Justice Minallah, but superior court judges, while hearing the bail pleas of the arrested NAB accused, have remarked multiple times that when the suspects have been regularly appearing before the investigators to answer questions, why they have been taken into custody. A standard reply of the NAB prosecutors has been that the anti-graft watchdog fears that the accused will flee abroad, will attempt to tamper record and influence and prevent witnesses from coming forward to record their testimony with courts. This apprehension is written without fail in the order of arrest issued by the NAB.

Justice Minallah while seized with the bail request of Pakistan Muslim League-Nawaz (PML-N) leader Ahsan Iqbal asked whether the NAB does not have enough competence to complete investigation into the case without arresting him. “Why should we not declare unjustified arrests by the NAB illegal? On what grounds was the NAB concerned that Ahsan Iqbal would try to stop witnesses from coming forward? We will issue a detailed order on the authority of the NAB to make such arrests. This trend has to end somewhere, and this authority has to be justified in front of the court. How can Ahsan Iqbal tamper with the record? His name can be put on the Exit Control List if there was doubt that he might leave Pakistan. The NAB should satisfy the court as to why the arrest of a suspect was necessary. Issuing wrong arrest warrants is also corruption.”

The NAB chairman has not only unrestrained powers to issue arrest orders, he has also similar authority to reach plea bargain or voluntary return with an accused although such arrangements are approved by the concerned accountability court. The apex court has asked the government more than once to change the NAO provisions relating to the plea bargain and voluntary return, but the government has not acted.

Section 24 also says that the NAB chairman can also order arrest of an accused whose case has already been referred to the accountability court. Where a public officeholder or any other person accused of an offence is arrested by the NAB, it shall, as soon as may be, inform him of the grounds and substance on the basis of which he has been detained and produce him before the court within a period of 24 hours of arrest excluding the time necessary for the journey from the place of arrest to the court. Such person shall, having regard to the facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceeding ninety days and the court may remand an accused person to custody not exceeding fifteen days at a time and for every subsequent remand the court shall record reasons in writing copy of which shall be sent to the high court.